Tenants and furniture thrown out the home after a court order. David Ritchie African News Agency (ANA)
CONSUMER - When a tenant is faced by the sheriff, literally knocking on the door to remove them from the dwelling together with their belongings, an interdict would be the only way to stop him.

This may be too late in most situations, since it also involves drafting legal documents in which the tenant must state that she has grounds and a bona fide defence to the main cause of action started by the landlord, and would have defended the action if aware of the existence of the summons or application or other court process.

The sheriff does not act on a direct instruction from the landlord; as an independent officer of the court, he receives his instruction from the court. The Act and rules of the magistrate’s courts and superior courts provide the instructions as to how court processes are to be served and how to carry out or execute the courts’ warrants and orders.

The Minister of Justice appoints a sheriff, whose conduct is regulated by the Board for Sheriffs, which in turn is regulated by the Sheriffs Act No. 90 of 1986. The Board for Sheriffs appoints deputy sheriffs. These are the only people who can serve the court processes, act on warrants and carry out the orders of the courts.

It does not help to be rude or aggressive towards the sheriff, who is only performing a duty that is required by specific provisions of the Act and rules of the court.

The sheriff is required to write down when, where, how and on whom the court process was served. The date and time and the number of attempts made to gain access to the property and to serve it on the tenant are also recorded.

This constitutes the “proof of service” of the court process, which accompanies an application for default judgment. It would not help ignoring summons or other court processes. In fact, ignoring or denial of these may lead to a disastrous situation; perhaps the knock on the door or finding all personal belongings thrown out and the door lock changed to prevent entry.

The warrant to execute a court order would have its beginning in a summons or an application that must be defended within the time limit prescribed by court rules. It may be that the landlord cancelled the lease, requiring the tenant to move out of the dwelling at a given date, followed by a summons after the tenant failed to move out. Whatever the cause for the cancellation, once a court process is served, it must be defended.

Failure to make an appearance to defend a summons, or having done so, the tenant ignores or fails to respond to other processes, such as challenging the landlord’s claims and allegations by filing a response through an answering affidavit, may result in a default judgment and ultimately removal from the dwelling. Once judgment is granted, the landlord would approach the court to have a warrant of execution so that the eviction order can be carried by the sheriff.

In Justice Ndlovu and Catherine Ndlovu v Unlawful Occupiers Erf 3200, Judge Willis granted an eviction order on March 30, 2011 in the South Gauteng High Court when the tenants failed to file their answering affidavits through their attorney.

Paragraphs 3 and 4 of the judgment show how important it is not to ignore or fail to respond to court processes:

“(3) Mr Pheto, who appears for 25 of the 31 respondents, today submitted that the return of service indicated that there had not been proper compliance with the order of this court authorising service of the notice of the intended eviction.

“In this regard, the answer is to be found in the unanimous decision of the Supreme Court of Appeal in the recent case of Theart v Minnaar 2010 (3) SA 327 (SCA) especially at paragraphs (13) and (14).

“In these paragraphs, the court makes what, in my respectful opinion, is an utterly unanswerable proposition of law. It is this: it is no good for the respondents represented by counsel in court to complain that they did receive perfect notice of the application.

“Quite clearly, by virtue of the fact that there is an advocate in court instructed by an attorney, they were indeed made aware of these proceedings. That, at the end of the day, is what court orders related to service are all about. They are designed precisely to ensure that a court can be reasonably assured that those who may be affected by the orders have been made aware of the proceedings and can put before the court facts and reasons why a court order adverse to them should not be made.

“(4) There is, of course, the interesting question of the six occupiers who have not instructed attorneys to represent them in these proceedings. Mr Pullinger, who appears for the applicants, is nevertheless prepared to take his chances in this regard.

“That is the right of the applicants. In other words, these six may later raise a defence to an order granted in their absence that they were unaware of these proceedings and present a bona fide defence. Prima facie, they have received adequate notice. They too have failed to file any affidavit indicating why they should not be evicted.”

Read the summons carefully and follow the instructions that include defending the action by filing a notice of intention to defend with the landlord’s attorney and the court. If there are no grounds to oppose the summons, then there is no need to file the intention to defend.

Dr Sayed Iqbal Mohamed is chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. For advice, contact Pretty Gumede or Loshni Naidoo on 031 304 6451 / [email protected] or [email protected]

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